Danny Bailey v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Jul 31 2015, 9:09 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
John Andrew Goodridge Gregory F. Zoeller
Evansville, Indiana Attorney General of Indiana
Chandra K. Hein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Danny Bailey, July 31, 2015
Appellant-Defendant, Court of Appeals Case No.
82A01-1501-CR-28
v. Appeal from the Vanderburgh
Superior Court
State of Indiana, The Honorable Mary Margaret
Lloyd, Judge
Appellee-Plaintiff
Cause No. 82D02-1006-FA-569
Baker, Judge.
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[1] Danny Bailey appeals the post-conviction court’s denial of his petition for post-
conviction relief. Finding no error, we affirm.
Facts
[2] On March 31, 2011, a jury found Bailey guilty of class A felony child
molesting, class C felony child molesting, and class B felony incest. Bailey was
sentenced to forty years on the first count, six years on the second count, and
ten years on the third count. The trial court ordered these sentences to run
concurrently, resulting in a forty-year executed term. Bailey appealed his
sentence, and this Court affirmed in a memorandum decision. Bailey v. State,
No. 82A05-1108-CR-398, 2012 WL 1069016 (Ind. Ct. App. Mar. 29, 2012).
[3] Following this decision, Bailey filed a petition for post-conviction relief in
which he alleged that he had been denied effective assistance of counsel. Bailey
alleged that his trial counsel had never informed him that, prior to trial, the
State had offered Bailey a plea that would have resulted in a term of fifteen
years. The post-conviction court held a hearing on October 24, 2014.
[4] Bailey called his trial attorney, Kurt Schnepper, to testify at the hearing.
Schnepper testified that the State initially offered a plea agreement with a
sentence of forty years. He testified that he discussed this plea with Bailey but
did not recommend that Bailey accept it. Schnepper further testified that the
State offered a second plea agreement, this time with a sentence of fifteen years.
In regard to this plea offer, Schnepper testified that while he did not have a
specific recollection of communicating the offer to Bailey, it was his practice to
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always communicate plea offers to his clients. Following the hearing, the post-
conviction court denied Bailey’s petition for post-conviction relief. Bailey now
appeals.
Discussion and Decision
[5] Bailey argues that the evidence before the post-conviction court indicated that
Schnepper failed to engage in meaningful plea negotiations and, therefore, the
post-conviction court erred in determining that Bailey had not been denied
effective assistance of counsel. A party appealing a post-conviction court’s
denial of a petition for post-conviction relief “must establish that the evidence,
as a whole, unmistakably and unerringly points to a conclusion contrary to the
post-conviction court’s decision.” Ben-Yisrayl v. State, 738 N.E.2d 253, 258
(Ind. 2000). We accept the post-conviction court’s findings of fact unless they
are clearly erroneous. Id. We examine only the probative evidence and the
reasonable inferences drawn therefrom that support the post-conviction court’s
judgment and we do not reweigh the evidence or judge the credibility of the
witnesses. Bigler v. State, 732 N.E.2d 191, 194 (Ind. Ct. App. 2000).
[6] To establish a claim for post-conviction relief alleging a violation of the Sixth
Amendment right to effective assistance of counsel, a petitioner must meet the
requirements set forth in Strickland v. Washington, 466 U.S. 668 (1984). The
petitioner must show that (1) “counsel’s representation fell below an objective
standard of reasonableness” and (2) that “the deficient performance prejudiced
the defense.” Id. at 687-88. A petitioner establishes prejudice by showing “that
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there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. at 694. It is well
established that “criminal defense attorneys have a duty to inform their clients
of plea agreements proffered by the prosecution, and that failure to do so
constitutes ineffective assistance of counsel under the sixth and fourteenth
amendments.” Dew v. State, 843 N.E.2d 556, 568 (Ind. Ct. App. 2006).
[7] On appeal, Bailey reiterates arguments made before the post-conviction court.
Bailey argues that Schnepper failed to adequately inform him of the details of
the State’s original forty-year offer and that Schnepper entirely failed to inform
him of the State’s subsequent fifteen-year offer. These are both issues of fact.
[8] Bailey points to the testimony of his wife, Georgette, who testified at the post-
conviction hearing that Schnepper had not informed Bailey of the second offer.
She also testified that Bailey was not able to inform her of any of the details of
the initial offer, which Bailey believes indicates that this offer was never
adequately communicated.
[9] However, the post-conviction court noted that Schnepper’s testimony
contradicted Georgette’s. It noted that Schnepper testified that he showed
Bailey the initial offer and discussed it with him. Appellant’s Br. p. 30. It also
noted that, as to the second offer, Schnepper testified that he “wouldn’t have
gone through all that trouble to get the offer and then hide that from [his] client
and not discuss it with him.” Tr. p. 20-21. Schnepper testified that it was his
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general practice to meet with the prosecutor before trial to discuss any final plea
offer. Schnepper testified:
Schnepper: I’m not going to take a class A felony to trial without
presenting that final offer to the client and discussing it
with him at length.
Counsel: Is it fair to say that’s your general practice?
Schnepper: Yes.
Counsel: And do you have any reason to believe why you
wouldn’t have done that here?
Schnepper: No, I just don’t have the specific recollection of whether
that was at the courthouse or at my office . . . .
Tr. p. 21.
[10] The post-conviction court noted that it had been presented with contradictory
testimony and that it was left “to decide which of these contradictory versions
of events carries the day.” Appellant’s Br. p. 31. The post-conviction court
concluded that “given the totality of the witnesses’ testimony, the Court can
only conclude that Attorney Schnepper did communicate the offers.” Tr. p. 32.
This conclusion is supported by the testimony of Schnepper and is, therefore,
not clearly erroneous. On appeal, we will not reweigh the evidence or judge the
credibility of the witnesses to reach a contrary conclusion.
[11] The judgment of the post-conviction court is affirmed.
May, J., and Robb, J., concur.
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